Man Sues After Choking During Live Fish Eating Contest At Tennessee Haunted House

Don’t you just hate it when a live fish eating contest at a haunted house goes awry after you’ve PAID your $15 to enter the contest?  Apparently, so does a Tennessee man named Cameron Roth.  He has filed a lawsuit against the operators of a Tennessee haunted house alleging that he was hospitalized for four days when he choked on a live fish he ate during one of their contests. The facts are these: Mr. Roth paid $15 to Frightmare Manor in 2013 to compete in a contest at the Haunted House.  The contest involved eating two live bluegill fish.  The suit alleges that “Frightmare failed to remove any of the spines from the bluegill fish” before providing them to contestants.  That would be an interesting feat to remove the spines from fish in a live fish eating contest.  But we digress.  Mr. Roth began choking as the first fish became lodged in his throat.  For those who are curious, this is how big a bluegill fish is:

The lawsuit alleges that Frightmare negligently failed to have any medical workers on hand to supervise the contest and workers did not seek emergency medical help when Roth began choking.  The suit seeks $150,000 in compensatory damages and $400,000 in punitive damages.  If the fish was anywhere close to as big as the one pictured above, this would appear to be a case of assumption of risk.

Sprint Allegedly Overbills Feds For Spying Services

There has been a lot of press in the past year about the various government programs in place for the United States to snoop on its own citizens.  Well, apparently, all that snooping is far from free, and the federal government is none too happy with one of its bills.  Federal officials filed a lawsuit earlier this week alleging that Sprint Communications overbilled the FBI, U.S. Bureau of Alcohol, Tobacco and Firearms, and other government to the tune of $21 million for wiretap services. Communication companies ordered by courts to intercept customers’ communications are allowed to recoup the cost of installing and maintaining the wiretaps.  However, the federal government and communications battled for years over who covers the cost to upgrade their equipment and facilities to ensure they can comply with court orders seeking wiretaps of their customers.  In 2006, the Federal Communications Commission settled the dispute in favor of the government, ruling that companies can’t bill for modifying their equipment and facilities to more efficiently intercept communications. Shocking! The lawsuit filed in federal court in San Francisco alleges that Sprint fraudulently billed for such expenses relating to equipment and facilities, which it knew was not billable. The tab from 2007 to 2010 amounted to $21 mil.  Of course, like any good Plaintiffs, the government doesn’t just want its $21 million back from the over-billing.  The feds are seeking treble damages, which would amount to approximately $63 million.  Sprint has denied any wrongdoing. This whole thing just seems silly.  Maybe Sprint should just suggest that the federal government join up with Russia for a wiretapping Framily Plan.  That might save Uncle Sam a little money.  Because “You don’t have to be family, to be Framily.”

Apple Gets Siri Lawsuit Dismissed

One of Apple’s big selling points has long been that their products “just work.”  Most Apple users would likely confirm that the claim is true, at least for the most part.  However, one group of Apple customers was apparently not so satisfied with Apple’s voice recognition software, known as Siri, and filed a consumer protection lawsuit in 2012.  That  lawsuit (In Re iPhone 4S Consumer Litigation, 12-cv-1127, U.S. District Court, Northern District of California (San Francisco)) was recently dismissed. The plaintiffs claimed that Siri didn’t work as advertised. Specifically, they alleged that sometimes Siri didn’t understand their requests, required long wait times, or responded with the wrong answer.  Apple didn’t exactly put up a strong defense of Siri’s functionality by arguing that the plaintiffs could have simply returned their phones if they were dissatisfied.   Even assuming the complaints about Siri are true, does that mean the plaintiff’s are entitled to recover?  Not even close.

In February, U.S. District Court Judge Claudia Wilken dismissed the plaintiff’s claims, calling them ”non-actionable puffery” and ruling that the plaintiffs had failed to show adequate evidence of any fraud in Apple’s part.  She also noted that Apple made no promise that Siri would operate without fail and that a reasonable consumer would understand that the commercials depicting the products they are intended to promote would be unlikely to depict failed attempts.

Thankfully, the judge used common sense in this case, which will hopefully help avoid a line of case law requiring advertisements to depict dropped calls, broken down cars,  malfunctioning computers, et cetera.

We reached out to Siri for a comment and she replied:

I’m really sorry, but I can’t take any requests right now. Please try again in a little while.

Interesting.

(Editor’s Note: Since we’re talking about Siri, please feel feel to revisit our April 2012 post entitled “Deposing Siri.”).

Let the Games Begin! Canadian Olympic Committee Sues The North Face

The Canadian Olympic Committee (COC) is none too happy about The North Face’s design and marketing choices for some recently released apparel, which it believes is an attempt to mislead people into thinking the company is an official sponsor of the 2014 Winter Olympic Games.  The COC has filed suit in a Canadian Court alleging that the apparel and the marketing surrounding it violate numerous Olympic trademarks.  The dispute is over The North Face’s clothing line originally dubbed its “2014 Village Wear Collection,” which used the marks “RU/14,” and “2.7.14″ (the date of the open ceremonies).  The designs also prominently feature national flags and the items were allegedly identified in marketing materials with names such as “Men’s Sochi Full Zip Hoodie.”  Here is an example of one of the items from the collection. The COC claims that the words, images, and symbols were used by The North Face in a way that was “deliberately designed and calculated to mislead and confuse the public into believing [The North Face] is an official sponsor [of the 2014 Winter Olympics].  The North Face has renamed the line the “International Collection” in response to complaints by the COC but apparently has not changed any of the designs and has refused to stop selling the products. The COC is seeking damages in an unspecified amount, as well as an injunction prohibiting the further sale of the products.

The North Face has released a statement on the matter denying liability.  The director of brand communications said in the statement:

The North Face has been a longstanding supporter of the free-skiing movement but we are not an official sponsor of the Canadian Olympic Committee or Team Canada and never indicated that we were.  We do not agree with the COC’s claims and are disappointed that they have taken this action.”

This whole lawsuit is not that surprising given that the Olympics have become all about big big money in the past decades and the International Olympic Committee is fiercely protective of its brand.  The Olympic brand has a lot of value associated with it and companies spend oodles of money to become official Olympic sponsors.  Although all of the individual actions of The North Face may have been okay on their own, they may actually be in trouble when you look at the apparel and marketing campaign as a whole.  Perhaps most troubling for The North Face is the fact that it allegedly had a product catalog that stated the product line “captures the international spirit of the Olympic Games.”

Carnival Cruise Lines Scores Victory in South Carolina

Carnival Cruise Lines recently scored a big legal victory in the South Carolina Supreme Court against several Charleston preservation and environmental groups.   The Plaintiffs claim that a 2,000 passenger Carnival cruise ship that uses Charleston as its home port is a nuisance.  The Court found that the Plaintiffs lacked standing because they were alleging a general public nuisance.

The Plaintiffs in this case alleged that the mammoth cruise ship  caused traffic congestion while loading and unloading its 2,000 passengers in downtown Charleston.  They also claimed that it created air pollution and blocked views.  Anyone who has been to downtown Charleston on a day when the cruise ship was loading up can certainly confirm its effect on traffic.  The several story high ship also blocks some views of the river.  However, the court never reached the underlying nuisance claim. Instead, the Court disposed of the case by holding that the Plaintiffs lacked standing because they were alleging a general public nuisance.  In South Carolina, as in most states, no civil remedy exists for a private citizen harmed by a public nuisance, even if his or her harm was greater than the harm suffered by others.  Rather, a plaintiff must allege a particularized harm to his or her legally protected interest.

As reported by Reuters, one of the lawyers for the Plaintiffs, Blan Holman, has said that some individual property owners are considering refiling the lawsuit as individuals.  Presumably, those property owners will attempt to allege a private nuisance for show that the cruise ship specifically interferes with the enjoyment and use of their property.

The case is Carnival Corp., et. al. v. Historic Ansborough Neighborhood Ass’n, No. 2011-197486 (S.C. Nov. 19, 2013).

 

Agent Orange Corn? USDA Opens Door to Genetically Modified Crops

Not too long ago, the federal government proposed eliminating restrictions on the use of corn and soybean seeds that are genetically engineered to resist a weed killer known as known as 2,4-D.   These seeds, developed by Dow AgroSciences, purport to allow farmers to use this powerful weed killer without harming the crops.    These seeds have already been cleared in Canada, but they are not yet for sale.  However, scientists and environmentalists worry that the seeds and 2,4-D could have unintended consequences.  In fact, some have dubbed the seeds “Agent Orange Corn”  in an attempt to stigmatize 2,4-D and the seeds resistant to it.

The chemical 2,4-D was, in fact, one of the main ingredients in Agent Orange.  Undoubtedy, seeds that are genetically modified to resist 2,4-D will increase its use by farmers.   But is it something that is potentially dangerous to our health or the environment?  The answer, according to a recent Forbes.com article, is ‘no.’  While 2,4-D was an ingredient of Agent Orange, it wasn’t what made the chemical so dangerous.  The culprit was a second herbicide ingredient known as 2,4,5-T.   According to the Forbes.com article:

The Environmental Protection Agency has evaluated 2,4-D numerous times under increasingly stringent risk assessment evaluations and consistently found the comparatively mild herbicide safe.  The Oregon State University and EPA-backed National Pesticide Information Center thoroughly reviewed the chemical and found it safe its proposed uses.

Environmentalists are also concerned that over herbicides can lead to the development of “superweeds,” which in turn will require more use of herbicides.  Indeed, herbicide resistance is already a problem for farmers using glyphosate (commonly known as Roundup).  However, proponents of 2,4-D claim that the product can actually decrease herbicide resistance since it will give framers another option to rotate when spraying for weeds.

While there might be more research needed to evaluate these new genetically modified seeds and the use of 2,4-D, it certainly sounds like the “Agent Orange” tag is nothing more than rhetoric.

Catch-22 of Marketing Sports Equipment: New Riddell Lawsuit

In an ideal world, products liability and other consumer protection lawsuits should make products safer in the long run.  However, there are often instances where they actually encourage companies not to innovate and improve safety.  For instance, the sports equipment companies who want to design safer products (e.g., helmets) must sink a lot of money into research and design of safer products.  Yet, at the end of the day, a new and improved product won’t look much different from the old ones competitors will sell at a cheaper price.

The solution is, of course, advertising the benefits of the new and improved product.   Or is it?

Advertising safer products presents a Catch-22 for companies.  If they don’t advertise, consumers are less likely to buy the new and improved product.  This may reduce the incentive to invest in developing safer products.  Yet, if they do advertise their product as “safer,” they’ll almost certainly be sued over that advertising down the line if someone is injured while using their new product.

Such is life for Riddell, Inc., one of the world’s leading manufacturers of football helmets.  For years, it has faced a barrage of concussion lawsuits.  In the last decade, it has attempted to improve the safety of its helmets by designing new and ostensibly safer models, one of which was called the “Revolution” helmet.  Unsurprisingly, it is now being sued over its marketing of that helmet.

Earlier in December, the case of Thiel vs. Riddell, Inc., et. al., 1:13-cv-07585, was filed in federal court in New Jersey.  According to the lawsuit:

[Riddell] in a engaged a scheme to mislead New Jersey consumers about the benefits of their premium-priced helmet by falsely advertising to New Jersey consumers that the Revolution helmet is manufactured with “concussion reduction technology” which reduces the incidence of concussion, and does so by up to 31%

The suit contends that marketing of the Revolution helmet was intended to and did create the perception among purchasers that the helmet better reduced the chance of concussion than lower priced helmets.  Plaintiff further contends that Riddell relied upon a study by the University of Pittsburgh Medical Center to make the claim of a 31% reduction in concussions but that such study was fatally flawed and Riddell was aware of this fact. We don’t have enough facts to make any sort of assessment as to the merits of the case, but it does reenforce the dangers in marketing innovative safety equipment.  Notably, the marketing video for Riddell’s new top of the line helmet, the “360″, focuses more on the features of the helmet without being very specific about its benefits.  Of course, we can still see a Plaintiff claiming that it creates the perception that the helmet reduces chances of concussions.  Then again, isn’t that the point?

Gas Cans Under Fire, Again

We’ve previously written about the alleged dangers of portable gas cans and the 5 cent part that could make them safer.  Last week NBC’s Today Show ran an interesting segment showing some of the scientific testing that has been done with regards to the potential for explosion.   According to the segment, there have been 11 reported deaths and 1,200 emergency room visits involving gas can explosions during the pouring of gasoline since 1998. The  danger allegedly stems from what is known as “flashback.”   Tests conducted at Worcester Polytechnic Institute’s labs show that under certain limited conditions a flashback explosion can occur inside a plastic gas can, when gas vapor escaping the can contacts a source of ignition such as a flame or a spark.  From the testing, it appears that this only happens when there is a small amount fuel left in the can and it is tilted a severe angle.

The solution that has been proposed by a number of experts and plaintiff’s attorneys is a what is known as a “flame arrester.”  It is basically a metal mesh plug that keeps a flame ignited outside of the can from traveling into the can and causing an explosion.   The “gas can industry” is supposedly still looking into whether flame arresters are necessary or effective.   All gas cans currently have general safety warnings printed on them telling users to keep away from flames and electric motors.

The Consumer Products Safety Commission’s official position since 2009 has been that is that it is investigating whether flame arrester should be mandatory.  However,  a spokesperson from the CPSC recently told USA Today that they would like to see  standards commission incorporate flame arrestor technology in consumer gas cans.

 

A Book Fair – Google Books Ruled Fair Use

It seems these days there is a very fine line between an innovator and a thief.   Google recently was found to be on the innovator side of the line in a lawsuit over its product Google Books.  As you may have heard, the U.S. District Court for the Southern District of New York recently held in its summary judgment opinion that Google’s scanning of more than 20 million books and posting them online was “fair use” under U.S. copyright law. See The Authors Guild, Inc., et al v. Google, Inc., No. 05-CIV-8136 (S.D.N.Y. Nov. 14, 2013). This case began nearly a decade ago when Google when began scanning and uploading “snippets” of books online without the permission of the authors and publishers.  In 2005, the Authors Guild brought suit against Google seeking $750 per book scanned.  As you might imagine, twenty million books at $750 per book adds up pretty quickly ($15 billion to be precise).  The two sides sought to settle the matter in 2011 for around $125 million.  However, the U.S. District Court judge refused to approve the settlement, holding that it would give Google a ”de facto monopoly” to copy books en masse.

The ruling in this case centered around whether Google’s use of the copyrighted books constituted “fair use.”   The doctrine of fair use permits the use of copyrighted works “to fulfill copyright’s very purpose, ‘[t]o promote the Progress of Science and useful Arts.’”  One key consideration in determining whether use falls under “fair use” is the extent to which it is transformative.  The use of work is transformative where it adds something new or alters the original creation.

The Court’s opinion focused largely on  the fact that Google Books was indeed transformative in that it “transformed book text into data for purposes of substantive research, including data mining and text mining in new areas, thereby opening up new fields of research.”   The Court ultimately held that this transformation, which adds value to the original books, along with other factors outweighed any commercial aspect of the use.  As such, it granted summary judgement to Google.

This ruling has been hailed by some as a win for the fair use doctrine, tech companies, and society at large.  We tend to agree.  However, there will undoubtedly be many who view this case as just another instance of the big companies and the court system stepping on the little guy.

Call me Justice . . . Captain Justice!

I’ll admit it.  My former life took place in a world where it was uncommon for lawyers to be referred to as “Captain.”  However, it was not some weird lawyer Comic-Con.  Rather, it was the United States Air Force, where most of the lawyers are junior officers known as Captains.   Apparently, there’s a lawyer, Drew Justice of Tennessee, who also wants to be referred to in the courtroom as ”Captain” -”Captain Justice,” to be exact.  Mr. Justice is neither a military officer nor a super-hero.  He’s just a criminal defense lawyer with some creativity and a dream.

This bizarre request actually stems from a prosecutor’s request for the judge stop Mr. Justice from referring to the prosecutors as “The Government.”  The rationale being, of course, that everyone hates the government and Mr. Justice was using the term in a derogatory fashion.  Mr. Justice was not pleased with this request.  Rather than simply acknowledging that the prosecution is an arm of the government or that the prosecution’s request implicated the First Amendment, he went a step further and got creative.

Here’s a list of the creative new titles he requested that the Court use if he could no longer refer to the prosecution as “the government:”

  • Rather than “the defendant” his client should be known as “Mister,” “the Citizen Accused” or “that innocent man;”
  • Rather than being called defense counsel or counsel for the defendant, he should be known as “Defender of the Innocent” but conceded that he would also alternatively accept ”Guardian of the Realm;”
  • When being referred to specifically by name, he requested to be called “Captain Justice.”

The tongue in cheek nature of his request certainly gets the point across, but it is doubtful that the court found it too amusing.  Still, it is hard not to laugh when reading the conclusion of his filing:

“WHEREFORE, Captain Justice, Guardian of the Realm and Leader of the Resistance, primarily asks that the Court deny the State’s motion, as lacking legal basis.”